New Year, New Look

For 2017, Double Aspect has a new look and a new address

This is just a quick note to let my readers know that I’ve given the blog’s look an update. Nothing crazy, but I hope that it looks better than it did before ― or at any rate that it looks reasonably well. If you have any concerns please let me know.

In addition, the blog now has a new URL ― doubleaspect.blog. You don’t actually need to update your bookmarks, as you’ll be automatically redirected to the new address even if you go to the old one, but if you want to save yourself that fraction of a second, then go ahead.

I don’t suppose my posts were much missed during the holidays, which I hope were happy for all. But now that that’s over, I will resume normal blogging in short order. Happy 2017, everyone!

#Clawbies2016

My nominations for this year’s Clawbies, and some other recommendations

December in the Southern hemisphere means that summer, not winter, is around the corner, and while the Santa Parade and Christmas trees are all there, they mostly provoke cognitive dissonance in those of us used to their being accompanied by snow (or grumblings about the lack thereof). That, and also concerns about Santa and his reindeer suffering a heatstroke. (On the plus side, I suppose there is no danger of getting burned in a chimney.) One holiday tradition that is not so weather-bound (though it will still be upended ― by the time difference that is; by the time the results come it, it will very much be 2017 in New Zealand) is that of the Clawbies ― the Canadian legal blogosphere’s yearly dose of self-congratulation.

We are about half-way through the nomination period, and some people, to whom I am very grateful, have been kind enough to put a word in for Double Aspect. It’s time for me to make my own suggestions. To be clear, by nominating some blogs and not others, I am not suggesting that these blogs are in some objective, absolute way “better” than others. What I am saying is that I like them, and think they deserve attention from readers and recognition from the Clawbies’ judges. Plenty of others do too, but the Clawbies’ rules say we are limited to three nominations, but the truth of the matter is that picking only three is pretty much mission impossible. So I will also bend the rules a bit, and make a few recommendations ― blogs I do not formally (and in some case am not permitted to) nominate, but which I still think should get considered for (and indeed win) some Clawbie or other.

Indeed, I will start with a recommendation, because it is for a blog that I could, and perhaps should, have nominated: Paul Daly’s Administrative Law Matters, last year’s big winner. Having nominated his blog repeatedly, I hope prof. Daly will forgive me for taking a break this time. I am pretty sure I will be nominating him again very soon, and indeed he would be a richly deserving winner again this time.

So for my actual nominations:

  1. The Université de Sherbrooke’s Law Faculty blog, À qui de droit: I mentioned it last year as a possible future nominee, and here it is. Sherbrooke’s response to Calgary’s ABlawg and the University of Alberta Faculty of Law Blog doesn’t (yet) have the former’s Clawbies-winning pedigree or the latter’s record of placing its contributors on the Supreme Court, but it is the best such collective effort east of the 110th meridian.
  2. Édith Guilhermont’s Juris Blogging: last year, I described Dr. Guilhermont’s as “the tireless apostle of legal blogging in Québec (although, ironically, not yet a blogger herself ― nudge nudge!)”; now, fortunately, the main part of this description is even more true, while the parenthetical no longer is. Juris Blogging is, so far as I know, the only blog devoted to law blogs in Canada. This may seem insular, but if Dr. Guilhermont is right that, for an increasing number of lawyers, blogs will be a supplement to, and even a substitute for, traditional legal scholarship, then she will be describing an increasingly important component of the legal culture and practice.
  3. Lisa Silver’s Ideablawg: Prof. Silver’s probing reflections on difficult issues in the criminal law are a must read for anyone interested in the subject. To my lasting regret, I didn’t care one bit for criminal law as a student, and avoided classes in it except for the compulsory one; Ideablawg helps me make up for the resulting ignorance, and I am grateful to its author for this! Thrice a Clawbie runner-up, it’s time Ideablawg were a winner already.

And here’s another recommendation, for a blog that I cannot nominate because I occasionally contribute to it (which reminds me that I’m overdue on my next installment): that of the CBA’s National Magazine. Its variety of subjects, contributors, and perspectives is pretty unique in the Canadian blawgosphere.

Finally, I thought I’d mention a couple of bloggers from my new home, New Zealand, which has more to teach Canadians about matters constitutional than we tend to suspect. One is Edward Willis, whose blog offers some very thoughtful takes on constitutional law and theory; the other is Andrew Geddis, whose posts on Pundit are always interesting, and will often highlight to Canadian readers the remarkable similarity of the issues faced in our two countries.

Passing Observations

Some thoughts on writing exams, from a guy who just graded 240 of them

As I’ve mentioned in previous posts, I recently graded (or, as we say in New Zealand, marked) more than 240 exam papers (or scripts). So I thought I’d volunteer some observations, in case any students who might be reading this are looking for tips. Of course, much of what follows will feel intuitive to many, and perhaps to most. The art of answering exam questions is not especially difficult to master. But there are, I can now tell, more than a few people who really could use some advice before they sit another final. (Whether they read my blog is a different question, admittedly.)

By way of introduction, let me say something of which students don’t think (I know: it’s not very long ago that I was a student myself!). A student writes only four or five exams, at most, at the end of a semester, but an instructor has many dozen, and possibly (as in my case) several hundred of them to read. This means that I only have a few minutes to devote to each script. (Ever complained about the marking taking too long? I know I have. But if it had to be done faster, that would mean even less time to look at your answers!) If I don’t know what you are saying ― whether that’s because your answers are poorly structured or even because your handwriting is atrocious ― I’m not going to spend a lot of time figuring it out. If you want me to understand you, it’s your job to make sure I do.

And beyond that, it’s in your self-interest to make sure that I… how to put this nicely… don’t get too worked up while reading your answer. Sorry as I am to say this, when reading the answer to the same question two hundred times over, it is unfortunately easy to find small things aggravating. I know one should not get aggravated, and I try not to. But still, don’t give me reasons to become annoyed. Try to spell correctly ― especially when you are writing my name on the exam booklet. (Seriously. I’ve seen my name spelled a couple dozen different ways, though the best one was the student who wrote my last name as Sinatra.) Try to punctuate sensibly ― instead of just randomly strewing periods all over your answers, or at the end of each line. Try to use proper syntax. In particular, ensure that your sentences have subjects and conjugated verbs, and that they are not just subordinate clauses floating around without anything to attach them to. (Of all the annoying things I’ve seen, this one is perhaps the most bizarre.) If your writing tone is formal, don’t be pretentious; if it is conversational, don’t be familiar. Oh, and please, don’t make unfunny jokes. Keep in mind that if you feel the need explain your joke, it’s probably not funny. And when in doubt about whether a joke you want to make is funny, abstain.

This all goes to the form of your answers. Let’s now turn to the content. The single most important thing is also the simplest one: answer the question you are asked! I will at least try to overlook those annoying periods all over the place, ignore ignorance of apostrophes, and put those free-floating subordinate clauses down to the stress of the exam room; but I can’t pretend that you are answering the question when you are not. In particular, if the question is a descriptive one, asking you what the law on a certain point is, don’t answer it as if it were a normative one, asking you what the law ought to be. And if the question asks you for a prediction about the consequences of a development in the law, don’t answer by explaining why this development ought not to, or will not, happen. That’s just not what I want to see, and as a result, your grade for that question will not be one that you want to see.

Another general point is that you won’t get very far by simply spewing the notes you took in class, and a fortiori the notes that I provided, right back at me. For the most part, doing this just shows that you have no idea what you are talking about and are throwing the proverbial kitchen sink at me. The same goes, of course, for keywords from my Powerpoint slides inserted into answers regardless of relevance. A related point is that if the exam is wholly or partly open book, you shouldn’t just print out your entire notes for the semester. Prepare an aide-mémoire that synthesizes what you’ve learned ― it will help you study, and finding things during the exam will be much easier than rummaging through a semester’s worth of notes. The one I used for the first year contracts exam, for a full-year class, was all of seven pages long, in size 12 font. It’s perfectly doable if you put in the effort. And of course, “putting in the effort” means actually understanding the material, enabling you to show the instructor that you have understood ― which is precisely what he or she wants to see.

Some more specific issues now. Perhaps the most important one is that you need to distinguish what is and what ought to be. This is one of the most important things in legal education, and it’s a safe bet that most instructors try to get you to do this, and want to see you do it on an exam. So don’t assume that things are necessarily right the way they are, and don’t assume that things were necessarily wrong in the past, when they were not as today. Don’t assume that judges always act as they are supposed to ― they are only human beings, prone to error and susceptible to the corrupting effects of power, especially to the desire to increase the power of courts at the expense of other institutions. But don’t assume that Parliaments and governments are always looking out for the public good, either. Don’t assume that they are all always wrong, or corrupt, or evil, of course. Judge each case on its own merits, and don’t forget that there is a decent chance that, if you are being asked a question, the answer to it is not altogether clear-cut or obvious. Pay attention to the context of your answer, perhaps especially on problem questions: if you are asked to write a memo for a client, it is probably not helpful to launch into philosophical disquisitions, or discussions of Roman law. Whatever the question, however, avoid making pompous general statements, which are invariably untrue and almost as invariably irrelevant (these include, for example, declarations that something has been done “throughout history” or needs to be done “in every country”). Last but not least, know your stuff! Don’t confuse Governor-General and Attorney-General. Don’t represent a concurring or a dissenting judgment as that of the court (even if I focused on that particular judgment in class). And don’t bring up a case to illustrate the application of a common law rule developed or a statute enacted years after that case was decided (in other words, know when the cases we studied were decided).

Contrary to what some students think, it’s actually a lot more fun for an instructor to give good grades than bad ones. It’s certainly more fun for me. But that doesn’t mean I’ll do it without good reason. I’m happy to interpret borderline cases favourably to you ― but not to pretend that your work is better than it really is. Do it well, and we’ll both be happy. Good luck!

St-Hilaire on Parliamentary Privilege

I have been completely snowed under, despite the coming Southern hemisphere summer ― or perhaps because of it, since coming summer means end of the semester, and end of the semester means exams to grade (or to mark, as we say around here). 243 exam papers (or scripts, in Kiwi), to be precise, in my Constitutional Law class (or paper). This is very nearly done, and I hope to resume blogging by the end of the week. In the meantime, my friend, and occasional guest here, Maxime St-Hilaire, will entertain us with a post on parliamentary privilege, cross-posted from the Université de Sherbrooke’s blog, À qui de droit. I am looking forward to it!

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

A Judge Unbound

The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether he would be prepared to breach the convention of regional representation on the Supreme Court in the service of an identitarian quest to appoint, say, an aboriginal woman, Justice Rowe’s appointment will, on the surface, be an unremarkable one. The convention stands undisturbed ― and perhaps stronger thanks to having been affirmed by a unanimous resolution of the House of Commons ― and the Court gets yet another successful and well-connected white male member. (Justice Rowe will be the first Newfoundlander to sit on the Supreme Court, however, so his appointment is groundbreaking in that way ― a step forward for old-fashioned regional diversity, if not for the contemporary demographic sort. Justice Rowe, who was born in 1953, is also relatively old ― among his new colleagues, only Justice Moldaver was older when he was appointed to the Supreme Court; many were substantially younger.)

Justice Rowe’s appointment is noteworthy, however, because of his views on his new job ― disclosed by the government as part of a questionnaire that he, as well as others who applied, had to complete in order to be considered. There are other interesting nuggets there, which others have highlighted. There’s Justice Rowe’s assertion that he was in fact the author of an opinion ostensibly signed by his court (see “Synopsis 2” in Part 7 of the Questionnaire); there’s the fact, highlighted by Dave Snow on Twitter, that he took a French immersion course just before applying, suggesting that his French might be rather rusty, at best; there’s a rather turgid writing style, though it is perhaps unfair to judge a man’s prose by the way in which he filled out a form. But let me focus on Justice Rowe’s ideas about judging and, especially, the Supreme Court. These ideas are, to me, concerning if not disqualifying.

Justice Rowe states that “[t]he Supreme Court is not, primarily, a court of correction,” which is certainly true, so far as it goes. He is right to say that “[t]hrough the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement.” But his conclusion ― that “the Supreme Court judges ordinarily make law, rather than simply applying it” ― is still remarkable. It is worth recalling, though admittedly Justice Rowe is not the only person who does not, that as John Austin pointed out in The Province of Jurisprudence Determined, the phrase “judge made law” was itself made up, by Jeremy Bentham, and was intended as “disrespectful and therefore,” Austin thought, “injudicious.” More importantly, the idea that judges ― those of the Supreme Court anyway ― usually “make make law rather than simply applying it” suggests that Justice Rowe will not feel bound by the constraints that precedent and statutory and constitutional text are thought to impose on judges, including those of the highest courts. The view is not exactly original ― as I noted elsewhere, Chief Justice McLachlin has expressed her own sympathy for it ― but it is disconcerting nonetheless. For the Rule of Law to exist, courts, like other government institutions, ought to be bound by the law. If judges feel that they can simply make the law up, indeed that this is what they are expected to do, the Rule of Law is not long for this world.

Now, in the very next paragraph, Justice Rowe says that ― unlike in common law adjudication ― “the role of judges concerning the interpretation of statutes … is to give effect to the will of the legislature.” But of course a substantial part of the Supreme Court’s work does in fact involve interpretation of statutes ― whether of the Criminal Code, the Income Tax Act, or of other legislation. At best, then, Justice Rowe’s previous statement about judges as law-makers is thoughtless, or reflects a certain confusion about what it is that the Supreme Court does. (It may well be that this is what’s going on here: as prof. Snow has observed, Justice Rowe is simply wrong to claim that “[r]elatively few recent cases deal with the division of powers.”) At worst, he is deliberately saying one thing and its opposite, the better to justify any approach he might be pleased to take in a given case. As Benjamin Oliphant has pointed out, this is indeed something of a tendency in Justice Rowe’s answers ― and also in the jurisprudence of the Court which he is about to join.

Justice Rowe’s view of the Supreme Court’s place in the Canadian constitutional framework is, ultimately, the smugly self-assured one that is prevalent in the Canadian legal community. Judges make law ― especially, it would seem, constitutional law, where Justice Rowe sees room for reviewing the Privy Council’s division of powers jurisprudence (though he does not explain on what issues), while the plebs (including, presumably, its representatives in Parliament) gladly and wisely accepts the pronouncements of the patres iudices: “Canadians,” Justice Rowe informs us, “have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country.” Some might even find Justice Rowe’s frankness in stating these views refreshing in comparison with the balls-and-strikes boilerplate future members of the U.S. Supreme Court are now generally expected to spout. Yet to me, a judiciary that is no more bound by a sense of modesty than it is by the law itself is a distressing prospect. Considering that the Prime Minister and his advisers seem to be comfortable with it, I may have to get used to it too.

Charitable Status and Freedom of Expression: Testing Labour Union Exceptionalism in the context of the Charter’s Fundamental Freedoms

The charitable organization Canada Without Poverty (“CWP”) has created some buzz lately with its constitutional challenge to a provision in the Income Tax Act that makes charitable tax status contingent on refraining from engaging in certain “political activities”.

As a preliminary matter, there is always a risk in assessing laws impacting expression that our thinking will become clouded by sympathies for the expression at issue. In order to avoid this at the outset of this egregiously long post, I would like to invite readers to not think of this as a challenge brought by an anti-poverty group. No one likes poverty. Think of it as a challenge brought by an organization whose otherwise lawful political expression you find obnoxious or distasteful. I, for instance, will imagine that the challenge was brought by a not-for-profit organization dedicated to promoting the interests of self-described “foodies”.

So the question is: does this lawful organization (whose ideas or objectives you dislike) have a constitutional entitlement to favourable tax treatment not available to other organizations, and to use the additional funds for their political purposes, as an incident of their fundamental freedoms?

Positive and Negative Rights

This challenge raises a number of unresolved issues that go to the very nature of the concept of “freedom” used in section 2 of the Charter, and in particular everyone’s favourite but murky (if not analytically unstable) distinction of “positive” vs. “negative” rights.

These difficult issues arise because the Government does not prohibit, restrict, or otherwise impose sanctions on organizations for engaging in political activities or expression. No one is stopping any organization from saying or doing anything, as such.

Rather, what the law does is make beneficial tax status contingent on refraining from engaging in political activities, including political expression. As I understand it, charitable organizations can engage in political activities and expression, or obtain tax breaks, but not both.

The difficulty with the CWP’s position is that we normally think of “freedom” as requiring the government to not interfere with the fundamental freedoms (religion, expression, assembly and association), but not as requiring positive state assistance for those activities. Presumably, we would all have greater opportunity to expend funds on religious, expressive or associational activities if we were afforded state assistance for them, be it through beneficial tax status, government grants, or positive legislative protections designed to facilitate these activities. But if you walk into court and say that the government has violated your fundamental freedoms because they have not left you with enough post-tax income to build a church or to run prime time election ads or to rent lane-time so your bowling association can practice, you will probably not get very far.

This point is not lost on the lawyers for the CWP. In their Notice of Application, they assert that they are seeking an entitlement to charitable status as such, but rather take the existence of charitable tax status as a given:

  1. CWP is not arguing that Parliament is constitutionally obliged to confer the benefit of charitable status for the promotion of any particular purpose or view. Though an argument could be advanced that governments have an obligation to provide statutory or financial support for organizations such as CWP to promote the relief of poverty, that is not the issue in this case. Parliament has accepted that relief of poverty is a charitable purpose and CWP has been granted charitable status to pursue this purpose. CWP relies on the fact that even if there is no constitutional obligation to provide charitable status for the relief of poverty, Parliament must ensure that where it chooses to provide the benefit, it does so in a manner that complies with the Charter. Restrictions imposed on CWP’s political expression must therefore be in compliance with the Charter. Section 149.1 (6.2) has as its clear purpose the restriction of political activities or expression. All of CWP’s activities that are subject to this restriction have expressive content, thereby bringing them prima facie within the scope of s. 2(b) protection.

While there are a number of ways this challenge could go,* I will focus on the constitutional principle underlined above – that while the government may not be constitutional required to confer a certain benefit, once it chooses to do so, it must do so in compliance with the Charter.

This principle is rather obviously true in general, but is more readily applicable in certain respects than in others. In particular, in the context of section 15 equality challenges, the government cannot extend a benefit to some and deny it to others on discriminatory grounds, and then claim it has not breached the Charter because the persons deprived of the benefit would have no entitlement to it in addition to their right to not be unlawfully discriminated against. The whole point of equality rights – and in particular the rights to “equal benefit” and “equal protection” of the law – is to forbid the discriminatory extension of benefits, burdens and protections.

The question the CWP application raises is different.  It is not raising a section 15, relative-entitlement equality claim – I am entitled to this state benefit/protection/support because others get it.  Rather, by relying on section 2, the CWP claim (or at least the angle I am focussing on) enters into the field of absolute entitlements – I am entitled to this additional state benefit/protection/support regardless of what other people get, because it is necessary to permit me to meaningfully exercise my fundamental freedoms.

Positive and Negative Rights and the Fundamental Freedoms

Generally, the courts have been resistant to extend state benefits or protections in that way under the fundamental freedoms. For instance, in Haig v. Canada, a case involving the government excluding persons from voting in a referendum due to their fluid residency status, L’Heureux-Dube J. made the following remarks:

As a starting point, I would note that case law and doctrinal writings have generally conceptualized freedom of expression in terms of negative rather than positive entitlements. (…)

It has not yet been decided that, in circumstances such as the present ones, a government has a constitutional obligation under s. 2(b) of the Charter to provide a particular platform to facilitate the exercise of freedom of expression.  The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones… [at 1035; emphasis added]

In applying this principle to the expressive ‘benefit’ at issue (the ability to express oneself through voting in a referendum), the Court in Haig found that there was no such entitlement:

A referendum is a creation of legislation.  Independent of the legislation giving genesis to a referendum, there is no right of participation.  The right to vote in a referendum is a right accorded by statute, and the statute governs the terms and conditions of participation.  The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status.  In my view, though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum.  Nor does it confer upon all citizens the right to express their opinions in a referendum.  A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone.  A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law.

The following caveat is, however, in order here.  While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution.  The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on ground prohibited under s. 15 of the Charter. [at 1041; emphasis added]

On this logic, the Court has rejected various constitutional challenges where the claimant sought state assistance or a certain ‘platform’ to facilitate their expression (i.e. a positive right). For instance, in NWAC, the Court rejected the claim that the government was constitutionally required under s. 2(b) to provide an aboriginal women’s group with funding and access to facilitate their position in constitutional negotiations:

It cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences (…) The respondents conceded as much in paragraph 91 of their factum as well as in oral argument. Furthermore, the provision of funding and the invitation to participate in constitutional discussions facilitated and enhanced the expression of Aboriginal groups. It did not stifle expression. (…)

At this point, I should add that it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, that the Government is also required to fund a group purporting to represent the opposite point of view.  Otherwise, the implications of this proposition would be untenable.  For example, if the Government chooses to fund a women’s organization to study the issue of abortion to assist in drafting proposed legislation, can it be argued that the Government is bound by the Constitution to provide equal funding to a group purporting to represent the rights of fathers?  If this was the intended scope of s. 2(b) of the Charter, the ramifications on government spending would be far reaching indeed. [at 654-656; emphasis added]

At one time, this was the default assumption that applied to all of the fundamental freedoms. As Robert Charney has recently explained, it has been applied in the context of freedom of religion, in cases like Adler:

Persons seeking funding for private religious schools have argued that without government funding they are unable to establish a religious school, or, if established, students who might want to attend would be unable to do so because they could not afford the tuition. In other words, they argued, that for at least some individuals, the right to attend a private religious school was meaningless in the absence of government funding to build and support such schools. This argument was rejected by the Supreme Court, which held that freedom of religion does not entitle one to state support for one’s religion. As Chief Justice Dubin stated in the Ontario Court of Appeal:

The right [to freedom of religion under Charter s.2(a)] involves the freedom to pursue one’s religion or beliefs without government interference, and the entitlement to live one’s life free from state-imposed religious beliefs. It does not provide . . . any entitlement to state support for the exercise of one’s religion.

Robert E. Charney, “Should the Law society of Upper Canada Give Its Blessing to Trinity Western University Law School” (2015) 34 NJCL 173 at 182; see also Adler, at para 199-200, per McLachlin J, at paras 171, 175, per Sopinka J., and at para 58, per L’Heureux‑Dubé J..

Similarly, in the context of freedom of association, the Court (at one time) rejected the proposition that the Government was required to extend certain ‘positive’ entitlements under the rubric of the fundamental freedoms, such as affirmative labour rights designed to facilitate or promote associational activities.

In Delisle v. Canada, for instance, the Court rejected the submission that excluding certain employees (there, RCMP members) from the protections found in the general labour relations statute violated their freedom of association. The RCMP members were left free to associate and to make representations to their employer about working conditions; they simply were not provided with the affirmative statutory protections necessary to enhance the power of that association in the collective bargaining context. In essence, the employer could ignore them. The majority explained the distinction between the principle’s application in the context of section 15 and in the context of the fundamental freedoms:

The structure of s. 2 of the Charter is very different from that of s. 15 and it is important not to confuse them.  While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law.  The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada, [1992] 2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15.  The distinguishing feature of s. 15 is that the Charter may require the government to extend the special status, benefit or protection it afforded to the members of one group to another group if the exclusion is discriminatory and is based on an enumerated or analogous ground of discrimination. (…)

It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance. (…)

On the whole, the fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue in the instant case.  In accordance with the decision of the majority of this Court in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, there is no violation of s. 2(d) of the Charter when certain groups of workers are excluded from a specific trade union regime.  The ability to form an independent association and to carry on the protected activities described below, the only items protected by the Charter, exists independently of any statutory regime. (…) [at paras 25, 26, 33]

As can be seen, the Court was characteristically cautious to never say never. In Haig, for instance, the majority mused that “a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required”. It gave the example of “legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information”, which it implied may require constitutional protection, despite the fact that it could be characterized as an assertion of a ‘right’ to positive protection or assistance (Haig at 1039). And as discussed below, the Court has taken this ball and thrown deep, especially (or perhaps exclusively) in the context of freedom of association and labour rights.

However, even after that ball started rolling, the Court has generally hewed closely to the orthodox distinction in most other contexts. In Siemens v. Manitoba, the Court again confirmed that freedom of expression did not entitle an individual to vote in a referendum, relying on Haig. And in Baier v. Alberta, the Court developed a somewhat obscure framework for the extension of positive rights in the context of section 2, in the course of rejecting the claim that freedom of expression was violated by excluding certain persons from running in a school board election. Notwithstanding the unique expressive advantage conferred by being a school trustee – i.e. it enhances the meaningfulness of expression – the court found that “claiming a unique role is not the same as claiming a fundamental freedom” (Baier at para 44).

Thus, I take it to be the general rule under section 2 that state may not act to impede religious belief or practice, expression, or associational activities, but it need not actively facilitate, promote, enhance or assist those activities.

Departing from the Rights vs. Freedom Distinction

The Court has since departed from this general s. 2 rule in a rather big way, albeit almost exclusively in one particular context: labour rights designed to facilitate meaningful association in the workplace. The first departure came in Dunmore v. Ontario, where the Court found that section 2(d) of the Charter required the extension of statutory rights specifically designed to facilitate the act of association, namely, protections against unfair labour practices of employers discriminating against employees who choose to associate (i.e. firing someone who joined a union), which employers are free to do at common law.

Since Dunmore, proceeding to BC Health and Fraser, and on to MPAO and Saskatchewan Federation of Labour, the Court has found that a broader range of affirmative statutory rights are necessary to permit workers to “meaningfully” exercise their fundamental freedom of association in the labour relations context. In these cases, no law or state actor stopped anyone from freely associating, generally speaking. The problem was that the association so created was not able to achieve what it was designed to achieve in the absence of unique statutory protections: i.e. engaging in meaningful collective bargaining, including by placing an obligation on the employer to bargain in good faith, protecting employees from termination lawful at common law, having access to a right to strike, and so on.

I do not think the Court has yet extended this principle outside the labour relations context, with one possible exception. In CLA, the Court found that section 2(b) of the Charter could require the government to disclose information in its possession where doing so was necessary to facilitate expression on the subject matter of the disclosure.  I happen to think is not so much an exception to the general rule, but that discussion is beyond the scope of this post. In any event, and beyond the CLA case, the extension of fundamental freedoms to require positive state support appears to only really apply in the context of labour relations. As the Court stated in Dunmore, with perhaps some degree of understatement, “it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations” (at para 20).

Notably, in defending the position that section 2 imposes positive obligations on the government in some circumstances, the Court has arguably gone beyond the wholly defensible position that the distinction between (positive) rights and (negative) freedoms can be murky and will at least admit of borderline cases, to the more radical proposition that there is really no distinction at all, stating for instance that “(t)he freedom to do a thing, when guaranteed by the Constitution interpreted purposively, implies a right to do it.” (Fraser, at para 67).

I think that taken too far, this view is problematic, if for no other reason that it would tend to put the courts in the position of doling out governing funding and statutory rights based on some arbitrary baseline entitlement to ‘meaningful freedom’. I doubt that is something that would be contemplated outside of the unique labour relations context. As I have put it elsewhere:

For example, consider freedom of religion. Section 2(a) does not impose any positive duty on the government, even if my lack of resources makes an important incident of this freedom (e.g., going on pilgrimages to Mecca or building a church) all but illusory, vapid or ‘impossible to exercise’. Likewise, if you are without the means or opportunity to effectively distribute your message to an audience, or simply no one cares to listen to you, your freedom of expression may be effectively rendered ‘pointless’. The absence of state action in this case may have the effect of ‘precluding’ meaningful expression, and the futility of the enterprise may indirectly ‘discourage’ it, but this does not entitle you to a constitutional remedy on the basis of government inaction. (…)

While the Court has shied away from strictly categorizing guarantees as ‘rights’ or ‘freedoms’, there can be little doubt that the questions “can the state prevent me from building a church?” or “can the government criminalize my political message?” are categorically different than “must the government purchase a parcel of land for my church?” or “must the legislature force private broadcasters to disseminate message?” While both state action and state inaction can operate to effectively ‘preclude’ the meaningful exercise of one’s substantive freedom, depending on the circumstances, the two inquiries are and must be treated differently as a matter of constitutional law. Simply stating that the line between ‘rights’ and ‘freedoms’ can occasionally be a hazy one cannot obliterate the line entirely.

On a more practical level, a ‘right to the meaningful exercise of a freedom’ standard necessarily requires the courts to attempt the almost impossible task of determining with any degree of certainty what is required to ‘meaningfully exercise’ a freedom – at what degree of meaningfulness does the state obligation to enhance the purposes and objectives of the association, expression or religion, begin and end? Many freedoms that the state may not unjustifiably encumber, such as writing papers on constitutional interpretation in obscure legal journals, may be done in vain, but that does not normally entitle authors to constitutional remedy.

Benjamin Oliphant, “Exiting the Freedom of Association Labyrinth:  Resurrecting the Parallel Liberty Standard Under 2(d) & Saving the Freedom to Strike” (2012), 70 UTFLR 36 at 68-71.

In other words, I think there is a fundamental distinction between section 15, relative – entitlements – you cannot deprive me of this benefit you give to everyone else – and the task of defining baseline entitlements to ‘meaningful freedom’, and we should not conflate them.  It is one thing for the Courts to erect a wall of freedom over which the state may not intrude, but quite another to start directing the distribution of government funds and legislative protections to achieve some abstract amount of ‘freedom’. The latter strikes me as a rather massive expansion of judicial power, made deceptively easy in the labour relations context by a ready-made statutory superstructure of positive protections (i.e. the Wagner Act labour relations legislation established across the country).

The Counter Point

All of that being said, I agree that the distinctions accepted in a range of cases discussed above – between a freedom and a right, between positive and negative entitlements, between state action and inaction, and so on – are not bright line rules that can resolve hard constitutional cases on the basis of an initial characterization.

To see how the distinction can break down, consider the Government conditioning access to a public space – e.g. holding a political rally in a city park – on supporting a particular partisan viewpoint.  I should think that a rather intolerable intrusion upon freedom of expression, despite the fact that a publicly-maintained public park could be characterized as access to a ‘platform’ of sorts. So the mere fact that a claim can be characterized as access to a state ‘platform’ or ‘benefit’ cannot end the analysis.

The US case law here might be instructive. The general rule applied by the US Courts is consistent with the orthodox position stated above. As recently outlined in AID v. Alliance for Open Society Intern.:

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient’s exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries’ installing filtering software violated their First Amendment rights, explaining that “[t]o the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance”); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (dismissing “the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State” (internal quotation marks omitted)). [at 2328]

One of the cases cited for the general rule, Regan v. Taxation With Representation of Wash, closely resembles the CWP challenge, as it deals with restrictions on charitable tax status. There the Court rejected the premise that freedom of expression requires the Government to extend state subsidies for public activities, stating:

The reasoning of these decisions is simple: “although government may not place obstacles in the path of a [person’s] exercise of . . . freedom of [speech], it need not remove those not of its own creation.” Harris, 448 U. S., at 316. Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” Id., at 318. (…)

TWR contends that § 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress — not TWR or this Court — has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. (…) It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying. [at 549; emphasis added]

As in Canada, however, this is not a hard and fast rule. I don’t presume to be an expert in First Amendment jurisprudence, but it seems that they have come up with a few subsidiary doctrines to deal with borderline cases where an otherwise meritorious claim could be characterized as one to state support.

First, if the ‘benefit’ being denied is one traditionally available to all to use for the purposes of expression (as in our public parks example above), the government cannot deny it without a good reason: “the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the restriction of speech in areas that have “been traditionally open to the public for expressive activity” (see United States v. Kokinda, 497 U. S. 720, 726 (1990)).

Second, in the AID case quoted above, the majority found that the Government could not make federal funding for a program contingent on engaging in expressive activities that are in some sense beyond the scope of the objectives of the program itself, and perhaps especially where the condition “requir[es] recipients to profess a specific belief”. This distinction is itself a fine one, and I think that particular case shades into a different area – the coerced expression cases. However, because the CWP case does not involve requiring the endorsement or forswearing of any particular political message, I am not sure this angle will be helpful.

Third, and most relevant to the CWP challenge, the US Supreme Court seems to be relatively comfortable with restricting the use of public funds and subsidies for certain expressive activities, but much less comfortable with blanket prohibitions tied to the group itself. As explained in Rust v. Sullivan:

In contrast, our “unconstitutional conditions” cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not “engage in editorializing.” Under that law, a recipient of federal funds was “barred absolutely from all editorializing” because it “is not able to segregate its activities according to the source of its funding” and thus “has no way of limiting the use of its federal funds to all noneditorializing activities.” The effect of the law was that “a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing” and “barred from using even wholly private funds to finance its editorial activity.” 468 U. S., at 400. We expressly recognized, however, that were Congress to permit the recipient stations to “establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid.” Ibid. Such a scheme would permit the station “to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities.” Ibid.

Similarly, in Regan we held that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free “to receive deductible contributions to support … nonlobbying activit[ies].” 461 U. S., at 545. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and at the same time establish, under § 501 (c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U. S., at 544. Given that alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply chosen not to pay for [appellee’s] lobbying.” Id., at 546. We also noted that appellee “would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.” Id., at 544. The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights. “Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures.” See id., at 548. [at 197-198; emphasis added]

If I were a betting man, I would suspect the Canadian courts might find this compromise position appealing. That is, while the government could condition the receipt of funds (or tax breaks) on using that money for certain purposes and not others (i.e. political activities), it cannot then prevent the organization from using funds collected from other sources for those political purposes. Whether this is a sustainable distinction in principle or a workable idea in practice is something I will leave to others.

Conclusion

The challenge raised by CWP is not an easy one to resolve.  However, it is a good one to test the theory of labour union exceptionalism in the context of section 2, i.e., that the courts are willing to extend relatively robust “positive” protections to labour unions to make their freedom of association more meaningful, in a way they would typically not contemplate in other contexts, either for other associations who might benefit from additional statutory protections (as most associations would), or for other persons who could benefit from government ‘enhanced’ freedom of expression or religion.

I should clarify that I do not mean to suggest that there’s any sort of ideological predisposition in favour of labour unions, at the Supreme Court level or otherwise. I suspect the discrepancy in the case law, if there is one, is better explained by path dependency and a sense of fairness than either some high constitutional principle or bias. That is, because the Wagner Act model has been extending affirmative rights to labour unions for nearly a century, and these rights were in exchange for a rather dramatic diminution of the freedom of workers (discussed here at 260 n. 28), the Court appears uncomfortable with legislation that fails to extend its baseline protections, even if there would be no independent constitutional entitlement to these particular statutory protections but for the historical fact of the Wagner Act model.

Nevertheless, in light of the relative success labour unions have had in claiming positive protections under freedom of association as compared with others in the context of the other fundamental freedoms, we should not be surprised that the CWP included a freedom of association claim in their Application, using language that conspicuously mirrors the that the Court has used in the context of extending affirmative protections to labour unions (see Notice of Application at paras 23-27).

If nothing else, this will put the courts to the task of deciding whether there are other associations beyond labour unions that require positive state protection or support to make their expressive and associational activities sufficiently “meaningful” to pass constitutional muster. This becomes a hard question once we realize that every organizations “freedom” to achieve their objectives and purposes would be enhanced in so far as they received government funding or positive statutory protection not available to everyone else.

At the very least, there is no doubt that the CWP’s expressive and associational activities will be enhanced to the extent that it would continue to benefit from beneficial tax treatment, without the corresponding responsibility to refrain from engaging in “political activities”. The question is whether the government is constitutionally obliged to support the expressive and associational activities that help the CWP advance its mission. Or, put differently, is there some principled reason why CWP’s claim to ‘meaningful’ expression and association does not require affirmative state protection of this sort, but that labour unions are entitled to certain positive protections to enhance the meaningful exercise of their freedoms? I think the CWP deserves a good answer to this question.

 

* First, the idea that the impugned ITA provision has an unconstitutional purpose , which the CWP’s Notice of Application asserts, might be a clever end run around all of the above, and raises other complications that I have not addressed in this post. For my purposes, I have assumed that there is some sort of rational basis for the provision that extends beyond the mere objective of repressing political expression, as such. Second, I recall there being allegations that the audits being undertaken by the previous government were politically motivated. I have no idea whether this is true and this does not appear to form the basis of CWP’s Application, and so I have assumed that not to be the case for the purposes of the post. If that were the essence of the allegation, however, it would raise constitutional issues, whether or not the impugned provision is permissible as a general rule.  In particular, I think that would get us into whether the government had an unconstitutional purpose in deciding to audit particular organizations, which might involve a Doré type analysis (scrutinizing the administrative discretion exercised by the CRA), or perhaps a Little Sisters type challenge, both of which raise complications I have not addressed.